Google Urges Court to Toss Gmail Privacy Suit

(CN) – A class is “contorting” state law “in ways the California Legislature never intended” by claiming that Gmail violates California privacy statutes, Google said in a motion to dismiss. Lead plaintiffs Brad Scott and Todd Harrington claim that the web-based service scans emails for words and content, and intentionally intercepts messages between non-Gmail subscribers and subscribers. Describing such actions as wiretapping and eavesdropping, the class says Google is in violation of the California Invasion of Privacy Act. Google replied Wednesday that its “fully automated processes involve no human review of any kind.” It further emphasized that its measures intend to screen out viruses and spam “for the protection of its users.” Google also argues that California’s privacy statutes are not intended to address emails or other electronic communications; that the plaintiffs are Alabama and Maryland citizens who do not allege that their emails have any connection to California; and that the plaintiffs failed to cite additional elements of the act related to wiretapping and eavesdropping. “In the context of emails, multiple courts have recognized that no one can reasonably expect that the emails they send to others will be free from the automated processing that is normally associated with delivering emails,” the 25-page motion states. “Plaintiffs fail to articulate a single concrete injury stemming from the automated processing of emails sent to Gmail users,” Google added. “Plaintiffs instead rely on conclusory allegations that their privacy rights were infringed in the abstract.” The terms “electronic communication,” “email,” “Internet” and “computer” allegedly appear nowhere in the statutes, which the state’s Legislature has repeatedly clarified, the motion states. Scott and Harrington filed the action in Marin County Superior Court in June. It was removed to federal court in San Jose. But Google says that the plaintiffs “cannot invoke the protections of California law” as residents of Alabama and Maryland with no connection to the Golden State. “Even if the court were to accept plaintiffs’ invitation to judicially rewrite the statute to reach electronic communications, choice of law rules would still preclude applying CIPA to this case,” according to the motion, abbreviating the California Invasion of Privacy Act. “CIPA makes clear on its face that it is intended to protect California residents and not to regulate California businesses,” Google added. The tech giant says that U.S. District Judge Lucy Koh should dismiss the complaint with prejudice. Koh will hear the motion, authored by Cooley LLP attorney Whitty Somvichian, on March 21.